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George Lilly, the Republican candidate for Colorado's First Congressional District, says on his website that he considers defense of the U.S. Constitution a "sacred oath." But after he threatened a libel lawsuit against the Rocky Mountain Right ("RMR") blog, one wonders about his views on the First Amendment.

Bill McGeveran, our good friend from University of Minnesota Law School, recently posted on SSRN a new article about the practical and procedural problems associated with trademark fair use and other free-expression-related defenses to a trademark claim.

Earlier this month, the District Attorney for Bronx County, New York, withdrew a subpoena seeking the identities of anonymous posters on political blog Room Eight. The posters had criticized local politicians and Bronx Republican Party officials in blog posts and comments. District Attorney Robert T.

Does Oregon's reporter shield law apply to an independent journalist who publishes online? That question looks set to be answered, thanks to the refusal of Tim Lewis to comply with a grand jury subpoena for his video of a May 30, 2008, demonstration in Eugene, Oregon, where police tasered an 18-year-old protester.

Back in April, I blogged about New York's Libel Terrorism Protection Act, which bars the enforcement of foreign defamation judgments unless a New York court has found that the foreign court proceeding provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York Constitutions.

In Tiffany v. eBay, decided today, the Southern District of New York gives helpful bounds to secondary liability for trademark infringement, saying eBay is not liable for its use of the term "Tiffany" nor for its sellers' sales of counterfeit goods. Judge Sullivan's careful analysis leaves the path clear for online marketplaces to flourish, putting enforcement burdens, where they belong, on trademark claimants.

First, the court finds eBay's advertisement, through "Tiffany"-keyed adwords on Google and Yahoo! searches, to be "nominative fair use." Some eBay sellers are offering genuine Tiffany merchandise, as trademark law recognizes is legitimate, and eBay has the right to use the brand name to identify them, rather than "absurd circumlocutions ... [such as] 'silver jewelry from a prestigious New York company where Audrey Hepburn once liked to breakfast.'" Even if search keywords are "use in commerce," therefore, the court finds them non-infringing.

Second, the court holds eBay not liable for the infringements of its users, under either direct or secondary liability theories. Instead, its contributory liability test looks much like the notice-and-takedown regime that the DMCA sets up for copyright: only specific knowledge of infringement can trigger liability, a "showing that a defendant knew or had reason to know of specific instances of actual infringement"; not the "generalized" knowledge of counterfeiting Tiffany would like to attribute to eBay. The court does not impose any prior monitoring obligation, implying only that a defendant must take appropriate steps after being notified of claimed infringement. (The court helpfully notes several times that Tiffany's "Notices of Claimed Infringement" are just claims, not proof, and that some listings have even been reinstated after incorrect claims.)

In Malibu City, an ocean-side enclave of Los Angeles, local government officials are considering regulations that aim to protect the privacy and safety interests of both celebrities hounded by the paparazzi and local residents, after local surfers went to fisticuffs with photographers trying to capture Matthew McConaughey surfing at Malibu's Little Dume Beach.

The New York Legislature recently passed several open records and open meetings reforms, adding New York to the long list of states that have taken steps to revamp their open government laws this year.

A recent report by the U.S. Attorney General paints a mixed but generally positive picture of progress by the federal executive agencies in improving their responsiveness to Freedom of Information Act requests.

As a big lawsuit grinds forward, its parties engage in discovery, a wide-ranging search for information "reasonably calculated to lead to the discovery of admissible evidence." (FRCP Rule 26(b)) And so Viacom has calculated that scouring YouTube's data dumps would help provide evidence in Viacom's copyright lawsuit.

A bill pending in the New York Legislature would allow the public to photograph, videotape, and audio record public meetings in New York, providing better access to government deliberations and information.
It would impose two minor conditions: the photographing or recording activity must not be disruptive, and the public body holding the meeting can regulate where equipment and personnel are located in the room.

“Photography is not a crime, it’s a First Amendment right,” proclaims the title of photojournalist Carlos Miller’s blog. Nonetheless, a jury found Miller guilty of obstructing traffic and resisting arrest without violence during his encounter last year with five Miami police officers that he photographed on a public street. As a result, Miami County Court Judge Jose Fernandez sentenced him to one year of probation,100 hours of community service, anger management lessons, and over $500 in court fees, well in excess of the three months

LoHud.com, an online news site operated by The Journal News that focuses on New York's Lower Hudson Valley, reported on Friday that a Westchester County judge has ruled that it must turn over the names of three pseudonymous posters to former House Representative Richard Ottinger and his wife, June Ottinger.

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About this Blog

Contributors to this blog include a diverse group of lawyers, law professors, law students, and others with an interest in new media. The views expressed are solely those of the individual contributors and do not necessarily reflect the position of the DMLP or the institutions with which they are affiliated. To learn more about the DMLP, please click here.

We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.

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